A sign for the sale of a building is not an advertisement. Supreme Arbitration Court of the Russian Federation: A sign is not an advertisement if it is of an informational nature about the activities of the organization. Permissible dimensions of the sign on the facade of the building according to the law

Information, the disclosure or distribution or communication to the consumer of which is mandatory in accordance with the Federal Law (see the Law of the Russian Federation of February 7, 1992 N 2300-1 "On Protection of Consumer Rights");

Reference, information and analytical materials (reviews of the domestic and foreign markets, the results of scientific research and tests), which do not have as the main goal of promoting a product on the market and are not social advertising;

Messages from public authorities, other government agencies, body messages local government, messages of municipal bodies that are not part of the structure of local self-government bodies, if such messages do not contain information of an advertising nature and are not social advertising;

Signs and signs that do not contain advertising information;

Announcements of legal entities not related to implementation entrepreneurial activity;

Information about the product, its manufacturer, importer or exporter, posted on the product or its packaging;

Any design elements of the product, placed on the product or its packaging and not related to another product;

Mention about the product, the means of its individualization, about the manufacturer or seller of the product, which are organically integrated into works of science, literature or art and in themselves are not advertising information.

Consequently, the costs of bringing these types of information to the consumer cannot be taken into account when taxing profits as advertising.

You can give the following list of types of information not related to advertising, on which there were controversial opinions.

Mandatory publication of financial statements.

A web page in the form of an online store does not meet the definition of advertising, it is a public offer.

Mandatory information on the sign.

Back in 1998, the Presidium of the Supreme Arbitration Court of the Russian Federation, in Information Letter No. 37 of December 25, 1998, clarified that the information on the signboard is not advertising, because the indication of its name on the signboard at the location of the organization does not pursue advertising purposes. The sign indicates the place of entrance to the occupied premises, therefore it cannot be considered as an advertisement. However, the financial authority is of a different opinion. In the Letter dated April 5, 2006 N 03-03-04 / 1/322 it is indicated that the name of the store is outdoor advertising and the costs of it must be attributed to other costs. This position is unclear, since, according to paragraphs. 5 p. 2 of Art. 2 of the Law "On Advertising", its provisions do not apply to signs and signs that do not contain information of an advertising nature. Accordingly, these objects are not advertising. For the purpose of taxation of profits, the costs of signs and signs are accounted for in accordance with paragraphs. 49 p. 1 of art. 264 Tax Code, since signs and signs are necessary for the taxpayer to inform potential consumers of his goods (works, services) about their location, which means that such expenses meet the criteria of paragraph 1 of Art. 252 of the Tax Code.

If an organization posts information that does not meet the general criteria of expenses that reduce profits for tax purposes, for example, about the anniversary of the company, then such expenses cannot be taken into account for tax purposes.

With such a mailing, the main sign of advertising disappears - addressing to an indefinite circle of persons, therefore, such expenses are not advertising. Arbitration courts adhered to this opinion even before the entry into force of the new Law on Advertising. For example, the Resolution of the FAS of the Moscow District of February 18, 2002 in case No. KA-A40 / 418-02 states: " Postal consignments were addressed to specific persons, and the fact that other persons had the opportunity to familiarize themselves with the content of these items does not mean that they have an intention to bring the information to an indefinite circle of persons. The plaintiff's actions were aimed not at achieving an advertising result, but at concluding an agreement with a specific person. The direction and goals of the disseminated information and its purpose is determined by the circle of persons, in this case - to a certain person. At the same time, it does not matter the number of items in general, as well as the method of making a decision on sending information to a specific person: addressees were selected from a limited circle of people or not. The very fact of choosing the addressees means the plaintiff's intention to acquaint a certain person with the information. Even the randomness of such a choice still limits the circle of those persons to whom the information is intended and to whom an offer was made to conclude an agreement on specific conditions. The coincidence of the conditions on which it is proposed to conclude an agreement with each addressee does not turn an individual offer into a public one. "

The Ministry of Finance and the Federal Tax Service, in relation to direct mail, clarified that for organizations that transmit advertising materials by direct mailing through the database of potential customers ( individuals), such expenses do not apply to advertising, as this information is intended for specific individuals. In addition, the costs associated with the free transfer of product catalogs, advertising leaflets about the company and a form for placing an order, in their opinion, are not taken into account for profit tax purposes on the basis of paragraph 16 of Art. 270 of the Tax Code.

The fact is that in accordance with the Law on Advertising, it is the uncertainty of the circle of persons - recipients of information that is the main criterion, in case of non-observance of which the organization is not entitled to recognize costs as advertising. That is, the costs of communicating information documents to a potential consumer cannot be taken into account for the purpose of calculating income tax on the basis of clause 16 of Art. 270 of the Tax Code.

However, the question arises: what is considered in this case an indefinite circle of persons? If the ad is in a subscription magazine, is the ad considered limited to subscriber information? Although it is possible that subscribers will pass ads to others, which will create distribution uncertainty. Since the Law on Advertising does not stipulate what is to be understood by "an indefinite circle of persons", in this case it can be argued: we are talking about persons who are unknown to the advertiser in advance.

That is, even with direct mailing, you can talk about advertising costs. Due to the ambiguity of the interpretation, litigation arises. And I must say that in arbitration practice there are examples indicating that the distribution of advertising among a previously known circle of persons is legitimate (see, for example, Resolutions of the Federal Antimonopoly Service of the Moscow District of August 4, 2005 No. KA-A40 / 7346-05, Ninth the Arbitration Court of Appeal dated February 20, 2006 N 09AP-177/06-AK (by the Resolution of the Federal Antimonopoly Service of the Moscow District of May 15, 2006 N KA-A40 / 3982-06, the decision was upheld)). And the Law on Advertising itself contains provisions indicating that advertising can be information disseminated among previously known persons. For example, with regard to advertising distributed over telecommunication networks, including through the use of telephone, facsimile, mobile radiotelephone communication, in clause 1 of Art. 18 of the Law "On Advertising" states that such advertising is allowed only subject to the prior consent of the subscriber or addressee to receive advertising. Therefore, we can conclude that advertising is distributed among a certain circle of people. At the same time, there are also opposite decisions, in which the judges support the tax authorities. Thus, in the Resolution of the Federal Antimonopoly Service of the Moscow District of April 28, 2005 No. KA-A40 / 3274-05, it is noted that a comparison of the norms of tax legislation and legislation on advertising leads to the conclusion that the key to accounting for advertising costs for tax purposes is the dissemination of information to an indefinite circle of persons. As follows from the materials of the case, including acts for the write-off of costs, which the applicant considers to be confirmation of the transfer of information of an advertising nature to an indefinite circle of persons, the recipients of information about the company on tangible media are specifically named. Thus, there is no element of recipient uncertainty that is typical for the distribution of advertising information.

We also note that if the distribution of advertising information is intended for a specific circle potential buyers and it contains information about all the essential conditions of the purchase and sale agreement and an offer to conclude an agreement with anyone who responded to the special offer regular customer, then such costs can be classified as an individual offer in accordance with Art. 437 Civil Code... In other words, such catalogs are distributed with the aim of concluding a contract for the product being sold, and not advertising. According to the explanations of the metropolitan tax authorities (Letters of August 18, 2006 N 20-12 / 74671, of November 24, 2003 N 26-12 / 65176), for the purpose of calculating income tax, these expenses can be taken into account as part of other expenses related to production and sale, on the basis of paragraphs. 49 p. 1 of art. 264 of the Tax Code.

Manufacturing of branded postal envelopes intended for sending correspondence to the company's counterparties, even if the envelope contains a leaflet with an advertisement.

The opinion of the Ministry of Finance of Russia is set out in the Letter No. 03-03-04 / 1/801 of November 29, 2006, according to which this information is intended for specific individuals. According to the explanations of the Ministry of Finance of Russia, the costs of applying (printing) advertising information on envelopes cannot be taken into account in advertising costs, since they do not correspond to the concept of advertising established by clause 1 of Art. 3 of the Law "On Advertising": the cost of making envelopes with a link to the website of the organization, as well as the cost of making business cards for employees who display the logo of the organization are not recognized as advertising costs, since this information is intended for specific individuals. With appropriate justification, such costs can be recognized in other expenses in full.

Prizes and gifts with the company logo to counterparties.

Such transmission is not considered advertising. In addition, it is unlikely that it will be possible to account for these expenses as other expenses for the purpose of taxing profits. According to paragraph 16 of Art. 270 of the Tax Code, do not reduce the tax base for income tax expenses in the form of the value of property donated (works, services, property rights) and expenses associated with such a transfer. Since the transfer of products with the taxpayer's logo to a certain circle of persons is not recognized as advertising, such an operation is considered as a gratuitous transfer of property. However, if souvenirs or prizes with company logo are distributed during formal reception representatives of counterparty organizations participating in negotiations in order to establish and (or) maintain mutual cooperation, then, in the opinion of the tax authorities, such expenses can be taken into account as representative expenses on the basis of paragraph 2 of Art. 264 of the Tax Code (see Letter of the Ministry of Taxes and Duties of Russia dated August 16, 2004 N 02-5-10 / 51). It should be borne in mind that the fact of business negotiations must be documented, and entertainment expenses for the purposes of taxation of profits are normalized (no more than 4% of the taxpayer's expenses for wages for the reporting (tax) period).

Placement of job advertisements in the media.

Placement of vacancies (recruiting employees) in the media is not an advertisement. Such expenses for the purpose of taxation of profits are related to other expenses on the basis of paragraphs. 8 p. 1 art. 264 of the Tax Code as the cost of recruiting employees (Letter of the Ministry of Finance of Russia dated February 28, 2003 N 04-02-05 / 2/10).

Making business cards.

The most common types of business cards these days are:

Personal business card, which indicates the last name, first name, patronymic, position of the owner of the business card and the name of the organization in which he works;

A corporate business card, which, as a rule, contains brief information about the organization: the logo of the organization and its name, postal and legal address, e-mail address, official website on the Internet, contact information, description of the organization's activities, working hours. At the same time, the personal data of the employee of the organization using the business card is not disclosed. All Additional Information is recorded at the time of acquaintance on the blank reverse side. Such cards are used by sellers, managers, employees working with the organization on a piece-rate basis, as well as in some cases by the leaders of the organization who prefer not to give new acquaintances their coordinates;

A personalized business card, which contains only the surname, name, patronymic of the owner without specifying the name of the organization. Such business cards are used, as a rule, by representatives of creative professions - actors, journalists, writers, artists, etc.

In accordance with All-Russian classifier products OK 005-93, approved by the Resolution of the Gosstandart of Russia dated December 30, 1993 N 301, business cards are classified as products of the printing industry (code 95 4270), which can be used by organizations:

For management purposes (informative function of business cards);

Depending on the function that certain business cards are designed to perform, the costs of their production are taken into account for tax purposes in different ways.

The function of a business card can be determined based on the information on the business card and on the person to whom it is intended.

Depending on this, for the purposes of calculating income tax, an organization may recognize the costs of making business cards:

Or as part of other expenses related to production and sale - as expenses for advertising produced (purchased) and (or) sold goods (works, services), taxpayer activities, trademarks and service marks, including participation in exhibitions and fairs (paragraphs 28, clause 1 of Art.264 of the Tax Code of the Russian Federation), taking into account the provisions of clause 4 of Art. 264 of the Tax Code;

Or as part of other costs associated with production and sale - as other costs associated with production and sale (clause 49, clause 1 of article 264 of the Tax Code of the Russian Federation).

If the costs of making business cards do not meet the criteria established by clause 1 of Art. 252 of the Tax Code, such expenses are not taken into account for the purpose of calculating income tax on the basis of paragraph 49 of Art. 270 of the Tax Code.

If the business card performs an informative (representative) function, that is, the business card contains the logo and name of the organization in which its owner works, name, patronymic, surname, position (title, title) of an employee of the organization, contact phone number, fax, telex, address corporate website and Email, then the purpose of such a business card is to represent the identity of an employee of the organization for a limited number of people, determined by the employee himself. The information presented on such a business card is not public, it does not form and does not support interest in the products manufactured by the company (work performed, services provided). Accordingly, such information does not meet the advertising criteria set out in Art. 3 Federal law dated March 13, 2006 N 38-FZ "On Advertising".

In the opinion of the Ministry of Finance of Russia, set out in Letter No. 03-03-04 / 1/801 of November 29, 2006, the costs of making business cards for the organization's employees with the organization's logo are not recognized as advertising costs, since this information is intended for specific persons. Consequently, the costs of producing such informative (representative) business cards can be recognized for the purposes of calculating income tax as part of other costs associated with production and sale, as other costs on the basis of paragraphs. 49 p. 1 of art. 264 of the Tax Code.

The Resolution of the Federal Antimonopoly Service of the Moscow District of April 12, 2006 in case No. КА-А40 / 2534-06 states that since business cards were used in this case by employees different divisions enterprises to fulfill their official duties and at the same time lists of employees for whom business cards were ordered, then the enterprise had the right to recognize these expenses as part of other other expenses (and not advertising expenses). A similar position is set forth in the Resolutions of the FAS of the Ural District of May 5, 2005 in case No. F09-1830 / 05-C7, dated March 11, 2004 in case No. F09-827 / 04-AK, dated January 26, 2004 on case N F09-4994 / 03-AK, dated March 3, 2003 N F09-451 / 03-AK, FAS of the North-Western District of August 5, 2002 N A56-4649 / 02, FAS of the Volga District of December 2, 2004 in case No. A55-3696 / 04-8.

In the opinion of the tax authorities, set out in the Letter of the UMNS of Russia for Moscow dated October 15, 2003 N 26-12 / 57647, for the purposes of taxation of profits, the costs of making business cards for employees of the organization who, according to their official duties, carry out commercial activities organizations, keep in touch with business partners and contractors. Moreover job duties this category of workers should be determined by the appropriate job descriptions approved in the appropriate order.

In support of the above position tax authority referred to clause 1 of Art. 252 of the Tax Code, according to which the payer of income tax reduces the income received by the amount of expenses incurred (except for expenses specified in article 270 of the Tax Code of the Russian Federation). In this case, expenses are recognized as justified and documented costs (and in the cases provided for by Article 265 of the Tax Code of the Russian Federation - losses) incurred (incurred) by the taxpayer. Reasonable costs are understood as economically justified costs, the assessment of which is expressed in monetary form... Documented expenses mean expenses confirmed, among other things, by documents drawn up in accordance with the legislation Russian Federation... Any costs are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income (clause 1 of article 252 of the Tax Code of the Russian Federation).

Thus, if the business cards are made for representative purposes, namely, to represent employees of the organization communicating with a limited circle of persons, which is determined by the employees themselves, and also if the cards do not contain advertising slogans, then such a business card is not a method of advertising. The reason for this conclusion is the discrepancy with the definition of advertising given in the Federal Law "On Advertising". The organization has the right to recognize the costs of making such business cards as part of other costs associated with production and sale on the basis of paragraphs. 49 p. 1 of art. 264 of the Tax Code, but subject to the requirements of paragraph 1 of Art. 252 of the Tax Code.

Considering that informative (representative) business cards are made so that an employee of the organization can perform his job duties in the interests of the organization, then this employee does not receive any material benefit for himself. Consequently, the value of business cards issued to an employee whose job responsibilities include maintaining business contacts with other organizations is not included in his income and is not subject to personal income tax.

If informative (representative) business cards are made by an organization for employees whose job responsibilities do not include maintaining contacts with business partners (for example, security guards, accountant-cashier, etc.), then the cost of the business cards made (including VAT) must be personal income tax withheld (subparagraph 2 of paragraph 2 of article 211 of the NKRF).

However, there are situations when an organization places information on business cards, but their content is advertising.

If such business cards are distributed, for example, at accounting seminars, at exhibitions, are invested in packages when packing purchased goods, that is, among an indefinite circle of people, then the costs of their production and distribution should be recognized as advertising costs based on paragraphs. 28 p. 1 of Art. 264 of the Tax Code, subject to the requirements of paragraph 1 of Art. 252 of the Tax Code (as part of other standardized types of advertising in accordance with clause 4 of article 264 of the Tax Code of the Russian Federation).

Signboard stands in modern world business card any company dealing retail or operating in the service sector. It informs the consumer in advance about the services that the company provides to potential clients. Let us consider in more detail what is the difference between a sign and an advertisement and whether a sign is an advertising structure according to the law.

You can download the Federal Law No. 38 "On Advertising" in the latest edition with all the changes and amendments at. The Law "On Advertising" regulates all types of advertising - in television, radio programs, print media, transport, as well as outdoor. It is to the latter type that advertising signs... More details about outdoor advertising are described in article 19 of the Federal Law No. 38. According to this regulation, this includes various billboards, stands, electronic boards and advertising on the facade of the building. In the latter case, when it comes to installing advertisements on a building or land plots, it is worth remembering that the approval of the installation of an advertising structure should be carried out with the owner of the property.

The legislation distinguishes the concept outdoor advertising and signs, therefore, different legal acts apply to them. We will consider in more detail what is the difference between these two concepts later.

From the point of view of the law, advertising is information that is aimed at attracting more consumer interest in a product or service for its better promotion on the market. The object for advertising can be a product, service, as well as the announcement of various events - concerts, film premieres, sports competitions. Dissemination of information about any product / service is carried out through the installation of billboards, stands, boards, etc. on buildings, transport. By law, the installation and use of the above advertising structures requires a special permit. For violation of this rule, a fine may be imposed on an unscrupulous citizen.

It's important to know!The provisionsthe law"About Advertising" does not apply to information disseminated to the consumer, which is mandatory for disclosure under the Law "ZPP", as well as signs and signs of a non-advertising nature.

This is the main difference between information construction and advertising. She does not advertise, but informs. The ZPP Law in Article 9 states that a product manufacturer is obliged to inform consumer citizens about the name of the organization, its address and work schedule... Information on the activities carried out is also mandatory, if it is subject to licensing or accreditation. This information is posted on a bulletin board and is not an advertisement, and therefore does not require permission to install it. In this case, the method of its implementation does not matter. It is worth taking a closer look at its location. If the sign is on the outside of the infrastructure, and the entrance to the organization is on the other, then this can be recognized by law as advertising.

How to install signs on stores

On March 13, 2006, the law "On Advertising" came into force. It regulates, as indicated above, the rules and requirements for different types advertising, their methods of distribution, as well as prohibits or reduces the dissemination of information about any product. The current latest revision dated April 1, 2017, and there is also a revision, the provisions will come into force on September 1 of the same year.

The procedure for installing a sign above the store involves its registration if it contains the following information:

• Name;
• the address;
• work schedule;
• Kind of activity.

Registration is not subject to a sign at the entrance to a store, at a fair or in another temporary trading place. By law, certain conditions must be met for registration:

• if the information board is placed on the house, then it is placed above the store and does not exceed the boundaries of the premises. It should not go beyond the floor line. Otherwise, the consent of other floor owners is required;
• if the sign is placed on the roof, then the consent of all owners of this building is required. Registration is carried out with the help of a written consent with a duplicate certificate of ownership;
• if it is placed on a part of an extension or building, then the written consent of its owner should be obtained.

It is forbidden to post information on cultural heritage sites. By law, the permit is issued for 5 years.

Permissible dimensions of the sign on the facade of the building according to the law

The sign on the facade of the building in accordance with the law "On Advertising" of the Russian Federation is located above the entrance or shop windows. If there are several on the wall, then they should be on the same axis. When the company is located in the basement, the sign should be located 60 cm from the ground, and its thickness should not be more than 10 cm.

The maximum height of the information board according to the law is 50 cm, the width is 70% of the facade, but not more than 15 m. And the height of the letters is 10 cm. The size of the inscription is not less than 15 cm.

The law regulates that the language of the inscriptions on the signs is Russian. The use of graphic images is possible. Inscription made on foreign language, allowed if:

• the trademark is registered in a foreign language;
• the right to use this trademark has been obtained;
• the name in a foreign language should be 2 times less than the inscription with information about the type of activity;
• abbreviations and abbreviations cannot be used;
• an inscription in a foreign language should not be in Russian transliteration.

By law, the sign must be illuminated at night.

Sign fines

FAS and local authorities monitor compliance with the law "On Advertising". If violations are detected, they have the right to send an order to the owner of the sign for its dismantling. This procedure is carried out within a month. You can appeal the decision of higher authorities through the court within 3 months.

According to the law, for the placement of a sign that contains information of an advertising nature, without the consent of the relevant authorities or violation of the rules for its use leads to the imposition of a fine under Art. 14.37 Administrative Code:

• for individuals - 1,000 - 1,500 rubles;
• for individual entrepreneurs and manager of the organization - 3.000 - 5.000 rubles;
• for legal entities - 500,000 - 1,000,000 rubles.

The above fines are significant and can be harmful financial budget organizations. For clarification on identifying hidden advertising in the sign, contact the local administration.

DECISION OF THE PRESIDIUM OF THE HAC RF OF 05/22/2012 N 15805/11
IN CASE N А71-1684 / 2011-А31
"INVOLVING THE SOCIETY IN ADMINISTRATIVE RESPONSIBILITY FOR VIOLATION OF THE ADVERTISING LEGISLATION IS UNLAWFUL IF THE SIGN HAS BEEN PLACED INFORMATION NOT RELATING TO ADVERTISING, IN PARTICULAR INFORMATION ABOUT ADVERTISING

The essence of the dispute

In the course of measures to monitor compliance with the legislation on advertising by the antimonopoly authority, it was established that on the structure located next to the entrance group to the dental salon, LLC Dental Salon Zhemchug (hereinafter referred to as the society) posted the following information: (bite correction) gum treatment teeth whitening ".

This information is recognized as advertising by the antitrust authority. Meanwhile, advertising of dental services should contain a warning about the presence of contraindications to their use and the need to obtain expert advice.

The antimonopoly authority, by its decision, recognized this advertisement as inappropriate and issued an order to the society to stop the violation, and also drew up a protocol on an administrative offense. The company was brought to administrative responsibility under Part 1 of Art. 14.3 of the Administrative Code of the Russian Federation, for violation of advertising legislation in the form of a fine in the amount of 100,000 rubles.

Disagreeing with the named decision, order and resolution of the antimonopoly body, the company applied to the arbitration court with demands to declare them illegal and to cancel them.

When considering this case, a question arose before the courts: what information can be attributed to advertising?

The issue of referring posted information to advertising

According to paragraph 1 of Art. 3 of the Federal Law of 13.03.2006 N 38-FZ "On Advertising" (hereinafter - the Law on Advertising), advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object advertising, formation or maintenance of interest in it and its promotion in the market.

Advertising that does not meet the established legal requirements is inappropriate (clause 4, article 3 of the Advertising Law). The current legislation provides for administrative liability for violation of advertising legislation (part 1 of article 14.3 of the Administrative Code of the Russian Federation).

By general rule Art. 9 of the Law of the Russian Federation of 07.02.1992 N 2300-1 "On Protection of Consumer Rights", the manufacturer (performer, seller) is obliged to inform the consumer of the firm name (name) of his organization, its location (address) and mode of operation. The seller (executor) places this information on the sign.

By virtue of clause 2 of this article, the consumer must be informed, among other things, about the type of activity of the manufacturer (contractor, seller), if the type of his activity is subject to licensing and (or) the contractor has state accreditation.

Special requirements for advertising of medical services, including methods of treatment, are established by Art. 24 of the Law on Advertising. Based on part 7 of this article, advertising medicines, medical services, including treatments, m! medical equipment should be accompanied by a warning about the presence of contraindications to their use and use, the need to read the instructions for use or to obtain expert advice.

The issue of referring the posted information to advertising was decided in jurisprudence ambiguous.

In a number of cases, the courts, when considering cases of violation of advertising legislation, attributed informational information posted on the facades of buildings to advertising, applied the provisions of the Law on Advertising in these disputes and, accordingly, refused to satisfy the requirements for the cancellation of decisions on bringing to administrative responsibility ...

So, the courts pointed to the legality of bringing to administrative responsibility for placing on the facade of the building information containing a list of works (services) performed (provided), in particular, in the implementation of medical activities. This information, in the opinion of the courts, was an advertisement for medical services, by virtue of which it should have contained a warning about the presence of contraindications to the use of medical services and an indication of the need to consult a specialist (see, for example, the Resolution of the Sixteenth Arbitration Court of Appeal dated 10.02. 2012 in case No. A63-7164 / 2011, the Tenth Arbitration Court of Appeal dated 05/31/2011 in case No. A41-45143 / 10).

At the same time, there are opposite court decisions, in which the courts satisfied the requirement to invalidate the decisions and orders of the administrative body.

In particular, the court noted that if the sign placed on the facade of the building does not contain an indication of a specific person providing medical services, aims to inform only about the place where these services are provided, then such a sign cannot be considered as an advertisement of a specific person (advertiser). In the text of the advertisement, the person providing the services is not individualized (Resolution of the Nineteenth Arbitration Court of Appeal of 12.05.2012 in case No. A36-4420 / 2011).

A similar point of view is also reflected in the Resolution of the Eighth Arbitration Court of Appeal dated March 24, 2011 in case No. A70-11144 / 2010.

The court concluded that the information "EURASIA law firm Tel. 46-01-11 ", located on the information module (on the support together with the sign road traffic), is not recognized as advertising, since it is a means of individualization legal entity in the form of a corporate designation and cannot generate interest among an indefinite circle of persons, promote the promotion of this designation in a specific service market, and also does not allow the named inscriptions to be identified as advertising of specific types of goods, works, services. The court also noted that this information does not contain any judgments about the advantages of this organization over others, but only optimizes the search for an object of rendering services with a previously formed interest in it among the company's clients.

The FAS of the Volga District came to a similar conclusion, indicating that the information posted on the signboard related to the type of activity of the legal entity and was mandatory for it due to the customs of business turnover. This information did not contain information about the object of advertising - the product, the means of its individualization, the manufacturer or seller of the goods, about the legal entity, ideas and undertakings, and the information was widespread and impersonal (Resolution of the FAS of the Volga District of 01/22/2009 on case N А12-9231 / 2008). Conclusions similar to those mentioned are contained in the Resolution of the Federal Antimonopoly Service of the Moscow District of December 26, 2011 in case N A40-46648 / 11-20-184.

In addition, the conclusion that information about the type of activity of a legal entity, obligatory for it by virtue of the customs of business turnover, cannot be information about the object of advertising, was confirmed in paragraph 18 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 1998 N 37 "Review of the practice of resolving disputes related to the application of advertising legislation." According to this clause, information, the dissemination of which in form and content is legal! person is obligatory on the basis of law or business custom, advertising information does not apply.

It should be noted that in some cases the courts pointed out the illegality of bringing to administrative responsibility for posting information that contains a list of works (services) performed by the organization. This is justified by the fact that such information does not correspond to the signs of advertising and the norms providing for liability for violation of advertising legislation should not be applied.

In this regard, the conclusion of the Federal Antimonopoly Service of the West Siberian District that the sign with the name and mode of operation, which is a listing of dental services in order to inform consumers about the activities of the organization, does not correspond to signs of advertising, is interesting. It should be borne in mind that the information under consideration does not provide treatment methods, there is also no indication of the use of specific medicines or medical equipment in the provision of these services. In such circumstances, there are no grounds for establishing the fact of violation of the Advertising Law (Resolution of the Federal Antimonopoly Service of the West Siberian District of June 28, 2012 in case No. A03-7673 / 2011).

Decisions of courts of different instances

The courts of three instances recognized the conclusions of the antimonopoly body as legal and refused to satisfy the stated demands to cancel the order to eliminate violations and the order to impose a fine in the case of an administrative offense.

Refusing to satisfy the stated requirements, the courts proceeded from the proof by the antimonopoly body of the dissemination of inappropriate advertising by the society, the compliance of the decision and prescription with the requirements of the current legislation, the presence of the imputed administrative offense and the absence of grounds for declaring it insignificant.

The argument that information about the types of activities of the company was posted in order to bring to consumers information about the types of services provided in the salon was declared insolvent by the courts.

According to the courts, this information was aimed at creating a preferential interest among the consumer in the services provided by society.

The Supreme Arbitration Court of the Russian Federation, in its Ruling No. VAS-15805/11 of 24.02.2012 in case No. A71-1684 / 2011-A31, concluded that it was necessary to revise the judicial acts of lower instances by way of supervision.

The legal reasoning contained in this Definition, was generally accepted by the Presidium of the Supreme Arbitration Court of the Russian Federation.

Please note that the Definition of the Supreme Arbitration Court of the Russian Federation is a procedural act and does not contain the legal position of the Supreme Arbitration Court of the Russian Federation, since it does not resolve a dispute on the merits.

Position of the Presidium of the Supreme Arbitration Court of the Russian Federation

The Presidium of the Supreme Arbitration Court of the Russian Federation canceled the decision of the court of first instance, as well as the decisions of the appellate and cassation instances, and satisfied the company's claims. At the same time, the following legal position was formulated by the highest court.

If the information posted by the organization on the sign is a listing of the services provided by the organization in order to inform consumers about the activities of this organization, then such information does not correspond to the signs of advertising and the norms of advertising legislation in this case are not applied.

At the same time, as follows from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation, in order to conclude that the information posted is of an informational nature and does not relate to advertising, it should not contain an indication of the use of specific means and equipment used in the provision of services, and also on methods of service delivery.

The Presidium of the Supreme Arbitration Court of the Russian Federation indicated that judicial acts of arbitration courts in cases with similar factual circumstances, which have entered into legal force, adopted on the basis of a rule of law in an interpretation that is at variance with the interpretation contained in the Resolution under consideration, can be revised on the basis of clause 5, part 3 Art. 311 of the APC RF, if there are no other obstacles for this.

It should be noted that by virtue of clause 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2011 N 52 "On the application of the provisions of the Arbitration Procedure Code of the Russian Federation when revising judicial acts on new or newly discovered circumstances", this indicates that this legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation is reversed. strength.

In this regard, the considered Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation is the basis for revising judicial acts on new circumstances.